Of our current moment

So tedious a thought is it that I might have to spend four years prefacing my every comment with the same words, again and again, that I might have a t-shirt made up:

“#NeverTrump, I didn’t vote for him—buuuut…”

Rich Lowry has a pretty good piece in the National Review this morning, arguing against what he calls a “coup.” Over the last month, a growing drumbeat has been heard from the sinistral side of the aisle, demanding that electors refuse to vote for Trump, either electing Hillary Clinton or at least throwing the election into the House. (For sake of concision, I’ll call them “Podestites.”) Now, “coup” is a strong word, but Lowry argues that “the norm of electors rubber-stamping the election’s winner is so ingrained in our system that any deviation from it would constitute a revolutionary act.” And the “rationales advanced for a radical departure from the practice as established over a couple of centuries are tinny and unconvincing at best.”

#NeverTrump, I didn’t vote for Donald Trump—but I agree. I have some remarks to offer on three aspects of the moment.

As to the so-called “electoral college” (something of a misnomer, but a common one): Here is my Scalian view on this. 1 We have a text, article II of the Constitution as amended by the Twelfth Amendment, which directs that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress … [who] shall meet in their respective States” to cast votes for President and send to the Congress the results. Reading this cold, one might expect that in this system, the fifty “electoral colleges” would function as a deliberative body. That the framers expected it to function in such manner is undoubted; Alexander Hamilton’s Federalist 68 is explicit on this point.

But we also have a tradition that they do not. As early as 1833—not halfway into the administration of only the seventh President of these States United— Justice Story remarked that the founders’ expectations as to the operation of the electoral college had been confounded  

in the practical operation of the system, so far as relates to the independence of the electors in the electoral colleges. It is notorious, that the electors are now chosen wholly with reference to particular candidates, and are silently pledged to vote for them. Nay, upon some occasions the electors publicly pledge themselves to vote for a particular person; and thus, in effect, the whole foundation of the system, so elaborately constructed, is subverted. The candidates for the presidency are selected and announced in each state long before the election; and an ardent canvass is maintained in the newspapers, in party meetings, and in the state legislatures, to secure votes for the favourite candidate, and to defeat his opponents. Nay, the state legislatures often become the nominating body, acting in their official capacities, and recommending by solemn resolves their own candidate to the other states. So, that nothing is left to the electors after their choice, but to register votes, which are already pledged; and an exercise of an independent judgment would be treated, as a political usurpation, dishonourable to the individual, and a fraud upon his constituents. 2

Lowry is correct; we have already heard from Hamilton, who continued in Federalist 68, underscoring the importance of procedural regularity: “[In designing a means by which the President be selected, it] was also peculiarly desirable, to afford as little opportunity as possible to tumult and disorder.” And he assented to its later amendment precisely for fear of procedural irregularity: “[B]ecause the present mode gives all possible scope to intrigue and is dangerous as we have seen to the public tranquillity.” 3 Story, too, noted the wisdom of an electoral college as a bulwark against the nation being “convulse[d] … with any extraordinary or violent movements….” 4 The text of the Constitution is in many regards open-textured; one can easily imagine other systems of government that fit into its text. An imperial presidency in which all executive-branch officers are simply ministerial vassals of a micromanaging President regnant a la Nicholas II is the logical endpoint of the unitary executive doctrine—yet, although Presidential power over the executive branch (and aspiration as to the other two) has waxed and waned between Windsorian and Romanovan, the American tradition has never gone to such an extreme. 5 The electoral college is similar. We can imagine a system in which the electors deliberate, and that system fits within the textual boundaries. But that system is not our system.

Now as to Russia. Articles about this tend to shroud the specifics of what’s being alleged under vague abstractions: “Interfere,” “hack,” “influence,” and similar. At bedrock, there seem to be two concrete allegations in service of a third insinuation. The first is that the FSB hacked into the email accounts of the Republican and Democratic National Committees and senior Clinton officials, and provided some or all of those materials to “Wikileaks,” which may be (stories vary) a useful idiot, a cats-paw, or an FSB front. Second, “Russia” (presumably although less than necessarily, the FSB) engaged in a campaign of information warfare: Fake news, manipulation of social media using automated accounts (for example, pushing the “trending” rankings on Twitter), that sort of thing.

I will stipulate arguendo that the FSB hacked the DNC and Camp Clinton and released a trove of hitherto-private documents, hoping to influence the election. 6For all that is secret will eventually be brought into the open, and everything that is concealed will be brought to light and made known to all” notwithstanding, this is a matter of concern. Any foreign power’s espionage in obtaining private information (and so leverage) on any American citizen or organization is concerning. 7 Where I have beef is the Podestite non-sequitur that if this is true, therefore Trump’s election was illegitimate and we must either have another election or the electoral college must take extraordinary steps to deny Trump the Presidency. (A third possibility, logically intermediate between these two proposals although never one that seems to appeal to those advancing the break-with-tradition argument, is simply for states to appoint new electors. 8) My objections to the latter, I have already covered, and as to the former, I would note simply that the Podestite proposal is not rationally related to the supposed harm to which it supposedly responds: The same Russia-disclosed information would still be in circulation.

I confess suspicion that the vagueness in the reporting and the frequency of that magical word “hack” is a deliberate play in support of the Podestites. Perhaps sensing that these concrete allegations are somewhat weak tea, what it is perhaps hoped that we might glean is a third allegation, one made only by insinuation (there seems to be little or no evidence for it): “Russia” somehow “hacked” the voting machines, compromising the process and so directly interfering in the election. That would make the Podestite positon rational and something less than brazen partisanship. That would be deeply, profoundly troubling. But there is no evidence for it—not even enough, it would seem, to allege it openly.

Finally, a few words on the supposed “national popular vote.” Bluntly: There is no national popular vote. To be sure, we can make one up, as a matter of mathematics. Every state currently appoints its slate of electors subject to statewide plebiscites, and we could aggregate the votes cast for each candidate in each of those plebiscites plus those cast in the District of Columbia and call the result a “national popular vote.” It is, doubtless, a soothing fiction for the losers. But as a matter of political process, it’s otiose. That isn’t how we elect Presidents. There’s a recurring defect in left-leaning political thought: “We can change a system without affecting the behavior of the people in the system. We change the rules, behavior stays the same, therefore the change effects the desired result.” But it doesn’t work that way; whether it’s tax policy or election rules, if you change the system, everyone knows it, and changes their behavior accordingly. You don’t have to be John Rawls to realize that you can’t hold the vote, see the results, and then decide what system those votes should be fed into! And if you change the system by which Presidents are elected to a nationwide plebiscite—lots of luck—everyone will knows it, and the behavior of voters and the campaigns that target them will change.

I didn’t vote for Trump; I lament his election and the apparent orphaning of the conservative movement in America. (Surely no conservative or libertarian can call a populist GOP home.) But he won. Those of us who were so confident that he would not should be chastened by that fact—it is a time for self-reflection, not subversion. And it wasn’t so very long ago that those who would not commit themselves in advance to the results of a hypothetical election result were “horrifying … [and] really troubling” (inter alia); astonishing, then, that those who nodded along with those sentiments (quite rightly) now refuse to accept in fact the results of an election that has actually happened. At the final debate, Hillary Clinton was emphatic that Trump much accept the result, like it or not. He can’t just wait and see how it turns out:

[T]hat is not the way our democracy works. We’ve been around for 240 years. We’ve had free and fair elections. We’ve accepted the outcomes when we may not have liked them. And that must be expected of anyone standing on a debate stage during a general election.

She was wrong that the result at issue would be her election as President, but she was right about the principle. And the principle’s the thing.

Notes:

  1. See generally Ralph Rossum, Antonin Scalia’s Jurisprudence: Text and Tradition (2006).
  2. Joseph Story, Commentaries on the Constitution § 1457 (1833).
  3. Hamilton, letter to Morris, March 4, 1802.
  4. Commentaries, § 1451.
  5. See generally Peter Shane, The Law of Presidential Power (1988).
  6. With characteristic sanity, the Rt. Hon. Charlie Cooke suggested in an appearance on the Fifth Estate podcast that the motive is being assumed erroneously; it is at least conceivable that the FSB assumed that Trump would lose and that their goal was to damage the incoming President Clinton rather than to elect a President Trump.
  7. Cooke, again, is astute in asking why it is Trump who is blamed for this, rather than the actual President who actually presided over it happening.
  8. See Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring).